Can a request by federal authorities be the sole basis for whether local and state authorities can detain individuals being sought for immigration violations? That politically charged question is scheduled to go before the Massachusetts Supreme Judicial Court on Tuesday. Critics say the practice of holding individuals based on so-called "detainer" requests from Immigration and Customs Enforcement is unconstitutional. They point to both the Fourth Amendment of the U.S. Constitution, which bars against unreasonable searches and seizures of individuals without a warrant based on probable cause, and similar provisions in the Massachusetts Constitution. Detainer requests typically ask federal, state, local and tribal law enforcement agencies to give at least 48 hours' notice before a suspected immigrant is released from a jail - or to hold the person for up to 48 hours after they would normally be released. The Department of Justice defended the practice as constitutional in a court filing, saying that without the cooperation of local and state officials "criminal aliens would be released back into the communities, endangering public safety and requiring even more dangerous at-large re-apprehensions of aliens prone to criminality or flight." The government also argues that the detainers requests are voluntary. "Immigration detainers are not mandatory. Rather, as the governing regulation and case law indicate, they are 'requests' upon State law enforcement to voluntarily assist Federal immigration authorities," the government wrote. Republican state Rep. James Lyons, a member of the Legislature's Judiciary Committee, agrees. He said if an ordinary citizen has an outstanding warrant and gets pulled over for a traffic violation, they'll be taken into custody. "Why should we have a two-tiered system in Massachusetts which gives more protections to people who are not citizens of the United States?" Lyons said. A separate filing written with the help of the American Civil Liberties Union of Massachusetts argues the detainer policy not only violates the prohibition against unreasonable search and seizure, but also creates a risk of discriminatory enforcement. "Massachusetts law enforcement officers cannot arrest people merely because someone else asks them to, even if that someone else is the federal government," the filing argues on behalf of lawyers groups, including the Massachusetts Association of Criminal Defense Lawyers. They argue that a detainer request essentially amounts to an unconstitutional arrest because it asks state and local officers to keep people in custody for up to 48 hours after they would otherwise be released in the absence of any new criminal charges. In addition to violating the Fourth Amendment of the U.S. Constitution, they argue, the practice violates Article 14 of the Massachusetts Constitution, which also guarantees the "right to be secure from all unreasonable searches, and seizures" without a warrant. Jessie Rossman, a staff attorney for the ACLU of Massachusetts, said the issue deals with basic rights and should cut across partisan lines. "What we're talking about here is not a liberal issue or a conservative issue, but a fundamental issue of the constitutional protections against unlawful seizures," Rossman said. Opponents of the policy also argue that the practice of ICE detainers has intensified and become more discriminatory under President Donald Trump. "The President has repeatedly said that those born in certain countries or who practice a certain religion pose a threat that must be urgently addressed through immigration enforcement," the lawyers groups argue, adding that the administration has given ICE officers "expansive and unreviewed discretion to target people for detention and deportation, throwing the door open to racial, ethnic, and religious profiling." Republican Gov. Charlie Baker last year allowed the state police to temporarily detain some people wanted by federal immigration authorities, reversing a previous policy put in place during the administration of former Democratic Gov. Deval Patrick. The current case was prompted by the arraignment last October of Sreynoun Lunn on charges of unarmed robbery Lunn was held and in February transported for a trial date. The state said it wasn't ready and the court dismissed the charges against him. Lunn's lawyers notified the court of an ICE detainer request for Lunn and asked that he not be held on the detainer. The court declined and Lunn was held solely on the detainer request until ICE agents arrived several hours later to take him into custody. While the particular case is moot since Lunn was in ICE custody, the court opted to proceed, given the underlying questions. The court can take several months to issue a ruling. Whether the case ends up before the U.S. Supreme Court likely hinges on whether the Massachusetts court ruling turns on the 4th Amendment to the U.S. Constitution or on Article 14 of the Massachusetts Constitution.

BOSTON —

Can a request by federal authorities be the sole basis for whether local and state authorities can detain individuals being sought for immigration violations? That politically charged question is scheduled to go before the Massachusetts Supreme Judicial Court on Tuesday.

Critics say the practice of holding individuals based on so-called "detainer" requests from Immigration and Customs Enforcement is unconstitutional. They point to both the Fourth Amendment of the U.S. Constitution, which bars against unreasonable searches and seizures of individuals without a warrant based on probable cause, and similar provisions in the Massachusetts Constitution.

Detainer requests typically ask federal, state, local and tribal law enforcement agencies to give at least 48 hours' notice before a suspected immigrant is released from a jail - or to hold the person for up to 48 hours after they would normally be released.

The Department of Justice defended the practice as constitutional in a court filing, saying that without the cooperation of local and state officials "criminal aliens would be released back into the communities, endangering public safety and requiring even more dangerous at-large re-apprehensions of aliens prone to criminality or flight."

The government also argues that the detainers requests are voluntary.

"Immigration detainers are not mandatory. Rather, as the governing regulation and case law indicate, they are 'requests' upon State law enforcement to voluntarily assist Federal immigration authorities," the government wrote.

Republican state Rep. James Lyons, a member of the Legislature's Judiciary Committee, agrees. He said if an ordinary citizen has an outstanding warrant and gets pulled over for a traffic violation, they'll be taken into custody.

"Why should we have a two-tiered system in Massachusetts which gives more protections to people who are not citizens of the United States?" Lyons said.

A separate filing written with the help of the American Civil Liberties Union of Massachusetts argues the detainer policy not only violates the prohibition against unreasonable search and seizure, but also creates a risk of discriminatory enforcement.

"Massachusetts law enforcement officers cannot arrest people merely because someone else asks them to, even if that someone else is the federal government," the filing argues on behalf of lawyers groups, including the Massachusetts Association of Criminal Defense Lawyers.

They argue that a detainer request essentially amounts to an unconstitutional arrest because it asks state and local officers to keep people in custody for up to 48 hours after they would otherwise be released in the absence of any new criminal charges.

In addition to violating the Fourth Amendment of the U.S. Constitution, they argue, the practice violates Article 14 of the Massachusetts Constitution, which also guarantees the "right to be secure from all unreasonable searches, and seizures" without a warrant.

Jessie Rossman, a staff attorney for the ACLU of Massachusetts, said the issue deals with basic rights and should cut across partisan lines.

"What we're talking about here is not a liberal issue or a conservative issue, but a fundamental issue of the constitutional protections against unlawful seizures," Rossman said.

Opponents of the policy also argue that the practice of ICE detainers has intensified and become more discriminatory under President Donald Trump.

"The President has repeatedly said that those born in certain countries or who practice a certain religion pose a threat that must be urgently addressed through immigration enforcement," the lawyers groups argue, adding that the administration has given ICE officers "expansive and unreviewed discretion to target people for detention and deportation, throwing the door open to racial, ethnic, and religious profiling."

Republican Gov. Charlie Baker last year allowed the state police to temporarily detain some people wanted by federal immigration authorities, reversing a previous policy put in place during the administration of former Democratic Gov. Deval Patrick.

The current case was prompted by the arraignment last October of Sreynoun Lunn on charges of unarmed robbery

Lunn was held and in February transported for a trial date. The state said it wasn't ready and the court dismissed the charges against him.

Lunn's lawyers notified the court of an ICE detainer request for Lunn and asked that he not be held on the detainer. The court declined and Lunn was held solely on the detainer request until ICE agents arrived several hours later to take him into custody.

While the particular case is moot since Lunn was in ICE custody, the court opted to proceed, given the underlying questions.

The court can take several months to issue a ruling.

Whether the case ends up before the U.S. Supreme Court likely hinges on whether the Massachusetts court ruling turns on the 4th Amendment to the U.S. Constitution or on Article 14 of the Massachusetts Constitution.